Madhya Pradesh High Court

Ashish Upadhyay vs The State Of Madhya Pradesh on 27 February, 2024

Author: Maninder S. Bhatti

Bench: Maninder S. Bhatti

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                        BEFORE
                                        HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                              ON THE 27 th OF FEBRUARY, 2024
                                           MISC. CRIMINAL CASE No. 4671 of 2024

                           BETWEEN:-
                           1.    ASHISH UPADHYAY S/O SHRI SANT LAL
                                 UPADHYAY, AGED ABOUT 40 YEARS, R/O VILLAGE
                                 KAJARWARA PURANI BASTI DISTRICT JABALPUR
                                 (MADHYA PRADESH)

                           2.    SACHIN   UPADHAYAY S/O    SHRI SURESH
                                 UPADHYAY, AGED ABOUT 39 YEARS, R/O 42
                                 ANANTARA TILAHRI JABALPUR DISTRICT
                                 JABALPUR (MADHYA PRADESH)

                                                                                         .....APPLICANTS
                           (BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI SOM PRAKASH
                           MISHRA - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH E.O.W.
                           JABALPUR DISTRICT JABALPUR (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           (BY SHRI MADHUR SHUKLA - ADVOCATE)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                              ORDER

This is the first application filed by the applicants under Section 438 of the Cr.P.C. seeking anticipatory bail in connection with FIR/Crime No.50/2019 dated 07.12.2019 registered at Police Station E.O.W. District Bhopal for the offences punishable under Sections 420 read with Section 120-B of the IPC.

2. The counsel for the applicants submits that in relation with commission of an offence alleged to have been committed by the present

applicants, they are being prosecuted. It is contended by the counsel that the applicants are innocent and have been falsely implicated in the case. It is contended by the counsel that a case against the present applicants was registered vide Crime No.25/2019 by the Special Court and the property which was seized in connection with an offence under the Prevention of Corruption Act, was attached. In the order of attachment along with various other properties, there was attachment of Khasra No.423/1 and 423/3 situated at village Kajarwara. The present applicants, after the order of attachment, executed a sale-deed dated 21.10.2019 in favour of one Beer Bahadur Singh. As per the sale-deed, Plot no.213 which was part of Khasra No.422 village

Kajarwara was to be alienated but in the sale-deed the Plot number was mentioned as 181. Realizing the said mistake, immediately a Civil Suit was filed on 25.11.2019. The said suit was decreed also vide judgment and decree dated 14.02.2022. However, after filing of the civil suit on 25.11.2019, the First Information Report in question was registered on 07.12.2019 alleging violation of the order of attachment passed by the Authority.

3. It is contended by the counsel that in the present case, there was no mens rea on the part of the applicants. Khasra No.423/1 was attached by an order of attachment, however, so far as Khasra No. 422 village Kajarwara is concerned, the same was never attached. The sale deed in question was pertaining to Khasra No.422 only and therefore, a case, on ill founded allegations, was registered against the applicants. It is further contended by the counsel that there is no compliance of Section 41-A of Cr.P.C. in the present case, therefore, in the light of the judgment of the Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another

reported in (2022) 10 SCC 51, the applicants herein deserve to be enlarged on bail. It is contended by the counsel that similar view has been taken by the Apex Court in the case of Aman Preet Singh vs. C.B.I. in Criminal Appeal No.929/2021 and it has been observed when an accused is allowed to participate in the investigation and he cooperated with the investigation but was not arrested, he deserves to be enlarged on bail. Counsel has placed reliance on the decision of Apex Court in the case of Mahdoom Bava vs. Central Bureau of Investigation reported in 2023 LiveLaw (SC) 218 and submitted that the Court also considered the aspect that the case was based on documentary evidence and since all the documents were on the record, there was no need for arrest of the applicants therein. No custodial interrogation is required in this matter. If the anticipatory bail is not granted to the applicants, their reputation in the society will be tarnished. There is no probability of their absconding or tampering with the evidence of prosecution. Conclusion of trial will take long time to conclude. Therefore, prays for grant of anticipatory bail to the applicants.

4. The counsel for the State has opposed the application and submitted that the application herein filed by the present applicants deserves to be dismissed. It is contended by the counsel that in the present case there is a report which reveals that the Plot No. 181 which in fact is a part of Khasra No.

423, was projected as the part of Khasra No.422 and 1000 sq.fts. of land out of Plot No.181 was alienated vide sale deed dated 21.10.2019 in favour of one Shri Beer Bahadur Singh and the the same was done by present applicants in connivance with each other. It is further contended by the counsel that Khasra No.423 was already under attachment and therefore, there could not have been any alienation of the said plot as the order of attachment dated 02.08.2019

passed by the Special Court in terms of Section 4 (1) of the Criminal Law Amendment Act, 1944, was in force. The sale deed was drafted fraudulently with an object to commit the offence of cheating and Plot No.181 which in fact is part of Khasra No.423 was shown as Khasra No.422 and the sale deed in question was executed.

5. It is further contended by the counsel that the statement of purchaser Beer Bahadur Singh has also been recorded on 08.01.2020 in which he stated that he was not aware that any criminal case was registered against the vendor and the property which the complainant was buying, was already attached by an order of Special Court. As there was an order of attachment, there could not have been any transaction pertaining to the property in question. The complainant not only levelled the allegations against the present applicants but also against the Sub-Registrar Shri Sushil Kumar Jain and after execution of sale deed on 21.10.2019, a Civil Suit was filed on 25.11.2019 and before that a spot inspection was also carried out on 08.11.2019 and it was verified that the Plot No.181 was part of the Khasra No.423 only. Thus, counsel submits that the application filed by the present applicants deserves to be dismissed.

6. No other point is argued or pressed by both the parties.

7. Heard the rival submissions of both the parties and perused the case diary.

8. On perusal of case diary it reflects that a case under Section 13 (1)(b) and 13 (2) of Prevention of Corruption Act has been registered against Shri Suresh Upadhyay, Smt. Anuradha Upadhyay and present applicant No.2 vide Crime No.25/19. Pursuant to the registration of the aforesaid offences under the provisions of Prevention of Corruption Act, the Special Court passed an order

in MJC No.4/2019 dated 02.08.2019 by which, the properties which were seized from the present applicants were attached. The order of attachment also included the property situated on Khasra No.423 village Kajarwara. On Khasra No.423, there is a Plot No.181 and the said plot is not there in Khasra No.422. So far as Khasra No.422 is concerned, there is not a single document on record to demonstrate that on the said Khasra number there is any division of plots. Therefore, it is a case where despite there being an order of Court of Law dated 02.08.2019, the applicants alienated the part of the property which was under

attachment while projecting the property to be situated on Khasre No.422 whereas there was no Plot No.181 on Khasra No. 423.

9. It is further important to take note of the judgment and decree which has been brought on record by the applicants dated 14.02.2022 which reveals that attempt was made to get the sale deed nullified on the ground that Plot No.181 was incorrectly mentioned in the sale deed whereas the vendor intended to sale Plot No.213. In the judgment and decree, the complainant Beer Bahadur Singh who was impleaded as defendant appeared before the Court and expressed that he had no objection that the sale deed in question be declared as null and void. The operative paragraph of the judgment reflects that the sale deed was declared null and void vide judgment and decree dated 14.02.2022.

10. If the argument of the applicants that only Khasra No.423 Mouja Kajarwara was under attachment and there was no order in respect of Khasra No.422, no offence could have been registered, the applicants were required to demonstrate before this Court as to whether any Plot No.181 exists on Khasra No.422 Mauja Kajarwar, Settlement No.505, P.C. No.10 Chaitanya City Jabalpur or not ?

11. In the entire case, no documents have been brought on record by the

applicants to demonstrate that is there any Plot No.181 on Khasra No.422 or not. If there was no Plot No.181 on Khasra No.422 then apparently, the conduct of the applicants is a question which is required to be taken note of upon sifting of the evidence.

12. In the present case, the applicants cannot take recourse to the ground as regards non-compliance of Section 41-A of Cr.P.C. inasmuch as it is a case where the applicants were already being prosecuted for the offences under the provisions of Prevention of Corruption Act. The applicants were also aware that the property in question was already attached yet, despite there being an order of attachment, the property in question was sought to be alienated by the present applicants.

13. It is evident that in the present case, the applicants were well aware about passing of the said order which is further evident from perusal of paragraph 6.1 of the application. It is not the stand of the applicants that they were not aware about the interim order of attachment.

14. Considering the totality of the circumstances of the case, the role attributed to the applicants and also the fact that there is a specific allegations against the present applicants more particularly when the act in question has been committed despite the fact that the property in question was already attached by a Special Court in connection with the offence registered against the present applicants vide Crime No.25/2019 under Sections 13(1)(b) and 13 (2) of Prevention of Corruption Act, this Court is not inclined to entertain this application for grant of anticipatory bail.